April 03, 2012

Advocate in Health Care Case Reflects on Historic Argument

UPDATE, 4/4/12, 11:50 a.m.: The headline and text of this post have been revised to reflect that during his talk, Robert Long cautioned against making predictions about Supreme Court decisions based on oral arguments.

One of the lawyers who appeared before the Supreme Court in the landmark health care cases last week says that based on the arguments — which, he said, are not conclusive — he cannot so far count any votes for the position he espoused. And he is okay with that.

No, it wasn't either of the lead lawyers Paul Clement or Donald Verrilli Jr. making this assessment. It was Robert Long, the Covington & Burling partner who was appointed by the justices to argue on March 26 that the Court has no jurisdiction yet to rule on the constitutionality of the Affordable Care Act. He was assigned to assert that the Anti-Injunction Act of 1867, which bars legal challenges to taxes before they are paid, applies to the health care litigation because the tax-like penalty that health insurance holdouts will be required to pay won't be levied until 2015. That position had been abandoned by the Obama administration earlier in the litigation.

Speaking at Georgetown University Law Center Monday afternoon, Long stressed that it is dangerous to predict outcomes from the tenor of an oral argument. Short of making a prediction, though, he said that "there appears to be no justice" who seemed to believe that the anti-injunction law should keep the Court from getting to the merits of the health care law challenges. Most commentators last week agreed, while also stating that Long had acquitted himself well in advancing the orphaned argument. Chief Justice John Roberts Jr. also complimented Long from the bench.

So why is Long not unhappy about this outcome? "I didn't have a client," he said, so there was no unhappy party to whom he had to break the bad news. "It was kind of liberating. Usually I would be crushed or depressed" if he had come away from an oral argument with such a bleak prospect of victory, Long said. But in this case his only obligation was to the Court, which wanted all sides of the jurisdictional issue ventilated. "They asked me to argue, I argued it, I did my job," Long said.

Also speaking at the Georgetown panel, co-sponsored by its Supreme Court Institute and the Federalist Society, were several lawyers who had filed briefs in the case. In addition to discussing possible outcomes, they touched on the extent to which political considerations were in evidence at the arguments and may influence the outcome.

Elizabeth Wydra of the Constitutional Accountability Center, which filed on behalf of state legislators favoring the law, was cautiously optimistic that it will be upheld "by the skin of Justice Kennedy's teeth." She was critical of Justice Antonin Scalia's "colorfully hostile" questions about the law, which she said "seemed to be drawn from Tea Party talking points."

Echoing Long's cautionary words, Mayer Brown partner Andrew Pincus said, "I would be pretty cautious about reading a lot" into the oral arguments. Patricia Millett of Akin Gump Strauss Hauer & Feld agreed. "Asking a question is very different from writing an opinion for the ages," she said.

Georgetown law professor Randy Barnett, a leading strategist for the challengers to the law, told the audience, "The smart money is always on the Supreme Court upholding an act of Congress." But he did not come away from the argument convinced that is what the Court will do. The unprecedented magnitude of the law made it a "case of first impression" for the Court, he said.

Barnett also criticized the "selective outrage" of commentators who are already saying it would be an example of judicial activism for the Court to strike down some or all of the health care law. "I didn't hear a chorus of protest" along the same lines when the Court was striking down laws enacted by Congress on terrorism detainees and military commissions, Barnett said.